Citation NR: 9613971
Decision Date: 05/16/96 Archive Date: 05/28/96
DOCKET NO. 93-12 178 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUE
Entitlement to service connection for periodontal disease.
REPRESENTATION
Appellant represented by: California Department of
Veterans Affairs
ATTORNEY FOR THE BOARD
Bernard T. DoMinh, Associate Counsel
INTRODUCTION
The veteran served on active duty from October 1973 to August
1975.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a rating decision by the Los Angeles,
California, Regional Office (RO) of the Department of
Veterans Affairs (VA), which denied the veteran's claim for
service connection for periodontal disease. In March 1995,
the Board remanded the case to the RO for additional
development. The case was returned to the Board in January
1996.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends, essentially, that he has periodontal
disease (i.e., gum loss and bone disease) which is secondary
to dental trauma incurred during service.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran has not met his
initial burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that his claim for
service connection for periodontal disease is well-grounded.
FINDINGS OF FACT
1. The veteran failed to report, without good cause, for a
VA dental examination that was scheduled in January 1993, in
connection with his claim for service connection for
periodontal disease.
2. No competent medical evidence has been submitted
attributing the veteran's claimed periodontal disease to
service.
CONCLUSION OF LAW
The veteran's claim for service connection for periodontal
disease is not well-grounded. 38 U.S.C.A. §§ 1131, 5107(a)
(West 1991& Supp. 1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Factual Background
The veteran's service medical records show that he had no
dental defects and indicated that that his dentition was
acceptable on his September 1973 pre-induction examination.
On his report of medical history, he denied having any severe
tooth or gum trouble.
Service dental records show that, in July 1975, the veteran
was involved in an automobile accident, indicating that tooth
number 8 became mobile. Records reflect that plastic from
the steering wheel of the car was removed from his right
buccal vestibule.
On the July 1975 separation examination, no dental defects
were noted, and on his report of medical history, he denied
having severe tooth or gum trouble.
In a statement of medical condition, made approximately the
same day as his discharge from service in August 1975, the
veteran reported that he had gum loss over three teeth.
Shortly after he was discharged from service, in August 1975,
the veteran filed a claim for dental benefits, alleging that
he had missing gum tissue and loose teeth. In June 1976, a
VA dental examination was conducted.
Subsequently, in a December 1976 RO dental rating decision,
based in part on the results of this examination, service
connection was granted for tooth Number 8 due to trauma
sustained in service.
In July 1990, the veteran filed an original claim for a
dental disability (periodontal disease), alleging that he had
injured several teeth during service. He reported his
mailing address as c/o General Delivery, Venice, California
90291. The RO scheduled a dental examination, but he failed
to appear. Therefore, in a September 1991 decision, the RO
denied service connection for periodontal disease.
In a November 1991 statement, the veteran reported that he
had problems with his mail delivery and did not receive
timely notice of the scheduled VA examination or RO decision
of September 1991. He requested that he be rescheduled for
another VA examination, and reported his new mailing address
as 2554 Lincoln Boulevard #4021, Marina Del Rey, California,
90291. He was rescheduled for an examination in January
1992, but again failed to appear, and the decision to deny
his claim was confirmed.
In February 1992, the veteran submitted a copy of a bill for
private dental services, indicating that he had received
treatment from Lance A. Sherman, D.D.S., during several
visits in 1991. No treatment records accompanied the bill,
and the bill did not specifically indicate the dental problem
involved.
VA dental treatment records, dated from April 1991 through
August 1992, indicate that the veteran had been scheduled for
several VA dental examinations, but failed to report for such
examinations. Records indicate that he was homeless and had
no mailing address or telephone number. Records show that he
had missing teeth and multiple dental caries, but was only
entitled to treatment for his service-connected tooth number
8, but in April 1991, received treatment for teeth numbers 7
and 8. Evidence dated in May 1991 shows that his gingiva
appeared healthier after he underwent dental debridement.
Records show that his number 17 tooth was extracted in July
1991.
The veteran was scheduled for a VA dental examination in July
1992 and again failed to report for the examination. He also
failed to report for a subsequently scheduled examination in
September 1992.
In October 1992, the veteran requested an RO hearing and a VA
dental examination, indicating that his mailing address was
2554 Lincoln Boulevard #882, Marina Del Rey, California
90291. In January 1993, he was advised by the RO that his
hearing was scheduled for January 26, 1993, but he failed to
appear. Records show that he was scheduled for a VA dental
examination in January 1993, but again failed to report. The
notice of hearing was returned to the RO by the postal
service, indicating that the veteran had moved and had left
no forwarding address.
In March 1995, the Board remanded the case to the RO to try
to develop the record further. A copy of the Board's
preliminary order was sent to the foregoing address, but was
returned with the indication that the veteran had moved and
had left no forwarding address.
Pursuant to the Board's remand instructions, Dr. Sherman was
contacted in April 1995 and asked to provide copies of the
veteran's dental records, but the doctor never responded.
According to correspondence from the West Los Angeles VA
Medical Center (VAMC), no additional records pertaining to
the veteran's dental treatment were located.
In June 1995, the veteran's representative was contacted and
asked to assist in providing the veteran's address, but was
unable to furnish the RO with this information.
In June 1995, the U.S. Postal Service informed the RO that
one of the mailing addresses reported by the veteran (i.e.,
2554 Lincoln Boulevard #4021, Marina Del Rey, California
90291) was that of a commercial mail receiving agency.
II. Analysis
The threshold question to be answered is whether the veteran's
claims of entitlement to service connection for periodontal
disease are well-grounded. 38 U.S.C.A. § 5107 (West 1991);
Gilbert v. Derwinski, 1 Vet.App. 49 (1990). A well-grounded
claim is defined as a "plausible claim, one which is
meritorious on its own or capable of substantiation."
Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Section 5107
provides that the claimant's submission of a well-grounded
claim gives rise to VA's duty to assist and to adjudicate the
claim. In short, VA is not required to adjudicate a claim
until after the veteran has met this initial burden of
submitting a well-grounded one.
"Although the claim need not be conclusive, the statute
[§ 5107] provides that [the claim] must be accompanied by
evidence" in order to be considered well-grounded. Tirpak v.
Derwinski, 2 Vet.App. 609, 611 (1992). In a claim of service
connection, this generally means that evidence must be
presented which in some fashion links a current disability to
a period of military service or to an already service-
connected disability. 38 U.S.C.A. §§ 1110, 1131 (West 1991);
38 C.F.R. §§ 3.303, 3.310 (1995); Rabideau v. Derwinski, 2
Vet.App. 141, 143 (1992). Evidence submitted in support of
the claim is presumed to be true for purposes of determining
whether the claim is well-grounded. King v. Brown, 5 Vet.App.
19, 21 (1993). However, lay assertions of medical diagnosis
or causation do not constitute competent evidence sufficient
to render a claim well-grounded. Grottveit v. Brown,
5 Vet.App. 91, 93 (1992); Espiritu v. Derwinski, 2 Vet.App.
492, 495 (1992).
In the present case, the veteran essentially maintains that he
should be granted service connection for periodontal disease.
However, he has proffered no competent medical evidence to
substantiate his assertion that he currently has the claimed
periodontal disease due to service or to service-connected
trauma to tooth number 8. For a service connection claim to
be deemed plausible, there must be competent medical evidence
of both a current disability and competent medical evidence of
a causal relationship between that current disability and
service.
Caluza v. Brown, 7 Vet.App. 498, 506 (1995); Rabideau v.
Derwinski, 2 Vet.App. 141, 143 (1992).
Thus, even accepting as true the veteran's account of dental
trauma during service, see King v. Brown, 5 Vet.App. 19
(1993), the Board nevertheless finds that evidence sufficient
to make his claim well-grounded has not been submitted. While
he is certainly competent to provide evidence regarding the
occurrence of an in-service event or injury such as the trauma
he has described, see Murphy v. Derwinski, 1 Vet.App. 78, 81
(1990), there is no indication in the record that he has the
medical expertise necessary to proffer the conclusion that he
has a current dental pathology (periodontal disease) which can
be attributed to the claimed in-service event. Id. Although
he has described the nature of his current problems and the
circumstances in which he believes they arose, there has been
no proffering of evidence by competent authority that he has
periodontal disease which can be attributed to military
service.
The veteran's allegations concerning the diagnosis or etiology
of his alleged periodontal disease, without corroborative
medical evidence, are of little probative value. See Brammer
v. Derwinski, 3 Vet.App. 223, 225 (1992); Hyder v. Derwinski,
1 Vet.App. 221, 225 (1991). None of the evidence submitted
shows that he has periodontal disease attributable to service.
Absent presentation of competent evidence establishing medical
diagnosis and causation, the veteran's claims may not be
considered well-grounded. See Grottveit v. Brown, 5 Vet.App.
91, 93 (1992); Espiritu v. Derwinski, 2 Vet.App. 492, 495
(1992). VA therefore has no duty to assist him in developing
his claims under 38 C.F.R. § 3.159 (1995).
When evidence has not been submitted sufficient to make a
claim well-grounded, the Board does not have jurisdiction to
act. Boeck v. Brown, 6 Vet.App. 14 (1993). Therefore, this
appeal must be dismissed.
ORDER
The veteran's claim of service connection for periodontal
disease is not well-grounded; the appeal of this issue is
therefore dismissed.
M. CHEEK
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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